[Federal Register Volume 65, Number 63 (Friday, March 31, 2000)]
[Proposed Rules]
[Pages 17231-17236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-7999]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[AD-FRL-6569-2]


Clean Air Act Proposed Interim Approval of the Operating Permits 
Program; Proposed Approval of State Implementation Plan Revision for 
the Issuance of Federally Enforceable State Operating Permits; Antelope 
Valley Air Pollution Control District, California

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes interim approval of the title V operating 
permits program submitted by the Antelope Valley Air Pollution Control 
District (Antelope Valley, or ``District'') for the purpose of 
complying with federal requirements that mandate that states develop, 
and submit to EPA, programs for issuing operating permits to all major 
stationary sources and to certain other sources. There are two 
deficiencies in Antelope Valley's program, as specified in the 
Technical Support Document and outlined below, that must be corrected 
before the program can be fully approved. EPA is also proposing to 
approve a revision to Antelope Valley's portion of the California State 
Implementation Plan (SIP) regarding synthetic minor regulations for the 
issuance of federally enforceable state operating permits (FESOP). In 
order to extend the federal enforceability of state operating permits 
to hazardous air pollutants (HAPs), EPA is also proposing approval of 
Antelope Valley's synthetic minor regulations pursuant to section 112 
of the Clean Air Act (``Act''). Today's action also proposes approval 
of Antelope Valley's mechanism for receiving straight delegation of 
section 112 standards.

DATES: Comments on these proposed actions must be received in writing 
May 1, 2000.

ADDRESSES: Comments should be addressed to Duong Nguyen, Mail Code Air-
3, U.S. Environmental Protection Agency, Region IX, Air Division, 75 
Hawthorne Street, San Francisco, CA 94105.
    Copies of the District's submittal and other supporting information 
used in developing the proposed interim approval are available for 
inspection during normal business hours at the following location: U.S. 
Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105.

FOR FURTHER INFORMATION CONTACT: Duong Nguyen (telephone 415/744-1142), 
Mail Code Air-3, U.S. Environmental Protection Agency, Region IX, Air & 
Toxics Division, 75 Hawthorne Street, San Francisco, CA 94105.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

    As required under title V of the Clean Air Act (Act) as amended 
(1990), EPA has promulgated rules that define the minimum elements of 
an approvable state operating permits program and the corresponding 
standards and procedures by which the EPA will approve, oversee, and 
withdraw approval of state operating permits programs (see 57 FR 32250 
(July 21, 1992)). These rules are codified at 40 CFR part 70 (part 70). 
Title V requires states to develop, and submit to EPA, programs for 
issuing operating permits to all major stationary sources and to 
certain other sources.
    The Act requires that states develop and submit title V programs to 
EPA by November 15, 1993, and that EPA act to approve or disapprove 
each program within 1 year after receiving the submittal. The EPA's 
program review occurs pursuant to section 502 of the Act and the part 
70 regulations, which together outline criteria for approval or 
disapproval. Where a program substantially, but not fully, meets the 
requirements of part 70, EPA may grant the program interim approval for 
a period of up to 2 years. If EPA has not fully approved a program by 
the end of an interim program, it must establish and implement a 
federal program.
    On June 28, 1989 (54 FR 27274), EPA published criteria for 
approving and incorporating into the SIP regulatory programs for the 
issuance of federally enforceable state operating permits. Permits 
issued pursuant to an operating permit program meeting these criteria 
and approved into the SIP are considered federally enforceable. EPA has 
encouraged states to consider developing such programs in conjunction 
with title V operating permit programs for the purpose of creating 
federally enforceable limits on a source's potential to emit. This 
mechanism would enable sources to reduce their potential to emit to 
below the title V applicability thresholds and avoid being subject to 
title V. (See the guidance document entitled, ``Limitation of Potential 
to Emit with Respect to Title V Applicability Thresholds'', dated 
September 18, 1992, from John Calcagni, Director of EPA's Air Quality 
Management Division.) On November 3, 1993, EPA announced in a guidance 
document entitled, ``Approaches to Creating Federally Enforceable 
Emissions Limits,'' signed by John S. Seitz, Director of EPA's Office 
of Air Quality Planning and Standards (OAQPS), that this mechanism 
could be extended to create federally enforceable limits for emissions 
of hazardous air pollutants (HAPs) if the program were approved 
pursuant to section 112(l) of the Act.

II. Proposed Action and Implications

    Antelope Valley is a new air district created by the state 
legislature in 1997. Sources in Antelope Valley were previously under 
the jurisdiction of the South Coast Air Quality Management District. 
This document focuses on specific elements of Antelope Valley's title V 
operating permits program submittal that must be corrected to meet the 
minimum requirements of 40 CFR part 70. The full program submittal, the 
Technical Support Document containing a detailed analysis of the full

[[Page 17232]]

program, and other relevant materials are available as part of the 
public docket.

A. Analysis of State Submission

1. Title V Support Materials
    Antelope Valley's title V program was submitted by the California 
Air Resources Board (CARB) on January 26, 1999 and found by EPA to be 
complete on March 26, 1999. The Governor's letter requesting source 
category-limited interim approval, California enabling legislation, and 
Attorney General's legal opinion were submitted by CARB for all 
districts in California and therefore were not included separately in 
Antelope Valley's submittal. The Antelope Valley submission does 
contain a complete program description, District implementing and 
supporting regulations, and all other program documentation required by 
Sec. 70.4.
2. Title V Operating Permit Regulations and Program Implementation
    The Antelope Valley's title V regulations were adopted on March 17, 
1998. They consist of Regulation XXX (Federal Operating Permits). The 
District also submitted supporting materials including the following 
rules: Rule 219 (Equipment Not Requiring a Permit, adopted July 21, 
1998), Rule 225 (Federal Operating Permit Requirement, adopted March 
17, 1998), Rule 226 (Limitation on Potential to Emit, adopted July 21, 
1998), Rule 301 (Permit Fees, adopted March 17, 1998), Rule 312 (Fees 
for Federal Operating Permits, adopted May 19, 1998), and Rule 430 
(Breakdown Provisions, adopted March 17, 1998). These regulations 
``substantially meet'' the requirements of 40 CFR 70.2 and 70.3 for 
applicability; Secs. 70.4, 70.5, and 70.6 for permit content, including 
operational flexibility; Sec. 70.7 for public participation and minor 
permit modifications; Sec. 70.5 for complete application forms; and 
Sec. 70.11 for enforcement authority. While the regulations 
substantially meet part 70 requirements, there are several program 
deficiencies, or interim approval issues. These issues are outlined 
below. Recommended changes are detailed further in the Technical 
Support Document.
    Variances--Antelope Valley has authority under State and local law 
to issue a variance from State and local requirements. Sections 42350 
et seq. of the California Health and Safety Code and District 
Regulation 1, sections 431-433 allow the District to grant relief from 
enforcement action for permit violations. The EPA regards these 
provisions as wholly external to the program submitted for approval 
under part 70, and consequently, is proposing to take no action on 
these provisions of State and local law.
    The EPA has no authority to approve provisions of state or local 
law, such as the variance provisions referred to, that are inconsistent 
with the Act. The EPA does not recognize the ability of a permitting 
authority to grant relief from the duty to comply with a federally 
enforceable part 70 permit, except where such relief is granted through 
procedures allowed by part 70. A part 70 permit may be issued or 
revised (consistent with part 70 permitting procedures) to incorporate 
those terms of a variance that are consistent with applicable 
requirements. A part 70 permit may also incorporate, via part 70 permit 
issuance or modification procedures, the schedule of compliance set 
forth in a variance. However, EPA reserves the right to pursue 
enforcement of applicable requirements notwithstanding the existence of 
a compliance schedule in a permit to operate. This is consistent with 
40 CFR 70.5(c)(8)(iii)(C), which states that a schedule of compliance 
``shall be supplemental to, and shall not sanction noncompliance with, 
the applicable requirements on which it is based.''
    Insignificant Activities--Sec. 70.4(b)(2) requires states to 
include in their part 70 programs any criteria used to determine 
insignificant activities or emission levels for the purpose of 
determining complete applications. Section 70.5(c) states that an 
application for a part 70 permit may not omit information needed to 
determine the applicability of, or to impose, any applicable 
requirement, or to evaluate appropriate fee amounts. Section 70.5(c) 
also states that EPA may approve, as part of a state program, a list of 
insignificant activities and emissions levels which need not be 
included in permit applications. Under part 70, a state must request 
and EPA must approve as part of that state's program any activity or 
emission level that the state wishes to consider insignificant. Part 
70, however, does not establish appropriate emission levels for 
insignificant activities, relying instead on a case-by-case 
determination of appropriate levels based on the particular 
circumstances of the part 70 program under review.
    In Rule 219 (Equipment Not Requiring a Permit) Antelope Valley 
provided both threshold emissions levels and a list of specific 
equipment which would not require a permit. This rule also clearly 
states that equipment need not be listed in a permit application for a 
federal operating permit if it falls below the threshold, is on the 
list of equipment in the rule, is not subject to an applicable 
requirement, and is not included in the equipment list solely due to 
size or production rate.
    Rule 219 set the threshold criteria for equipment to be exempt from 
a federal operating permit as 10% of the applicable threshold for 
determination of a major source, or 5 tons per year of any regulated 
air pollutant (whichever is less), and for HAPs any de minimis level, 
any significance level, or 0.5 tons per year (whichever is less). The 
levels established by Rule 219 exceed levels EPA has accepted for other 
state and district programs: 2 tons per year for criteria pollutants 
and the lesser of 1000 pounds per year, section 112(g) de minimis 
levels, or other title I significant modification levels for HAPs and 
other toxics (40 CFR 52.21(b)(23)(i)).
    During discussions between Antelope Valley and EPA staff on this 
issue, the District stated that the District would wait for a CAPCOA/
EPA Workgroup on insignificant activities to publish its 
recommendations, before revising Rule 219 to address EPA's concerns. On 
February 19, 1999, the Workgroup issued the ``Model List of 
Insignificant Activities for Title V Permit Program.'' In this 
document, the general insignificant activity criteria for emissions 
were set as: no more than 0.5 ton/year of a federal HAP and no more 
than 2 tons/year of a regulated pollutant that is not a HAP. 
Consequently, the District stated that Rule 219 will be amended to 
lower the insignificant activity threshold to 2 tons per year for a 
regulated air pollutant. This issue is identified below as an interim 
approval deficiency.
3. Title V Permit Fee Demonstration
    Section 502(b)(3) of the Act requires that each permitting 
authority collect fees sufficient to cover all reasonable direct and 
indirect costs required to develop and administer its title V operating 
permits program. Each title V program submittal must contain either a 
detailed demonstration of fee adequacy or a demonstration that 
aggregate fees collected from title V sources meet or exceed $33.82 per 
ton of emissions per year (adjusted from 1989 by the Consumer Price 
Index (CPI)). The $33.82 per ton amount is presumed, for program 
approval, to be sufficient to cover all reasonable program costs and is 
thus referred to as the ``presumptive minimum.'' See 
Sec. 70.9(b)(2)(i).
    Antelope Valley has opted to make a presumptive minimum fee 
demonstration. Antelope Valley's existing fee schedule (Element 7)

[[Page 17233]]

requires title V facilities to pay an amount approximately equal to 
$217 per ton in annual operating fees. This amount meets EPA's 
presumptive minimum (CPI adjusted). The $217 per ton amount is based on 
dividing the current fee revenues for title V work (40% of the total 
permit fees) plus a flat annual surcharge that covers the additional 
costs posed by title V by the total emissions (based on the 1996 
inventory). It should be noted that the $217 per ton figure may change 
as Antelope Valley is a new district with no prior operating history 
and a fee structure inherited from the South Coast Air Quality 
Management District, from which it separated in 1997. The annual fee 
number will be adjusted to reflect actual and more accurate operating 
data as it becomes available. Antelope Valley will maintain an 
accounting system and is prepared to increase fees, as needed, to 
reflect actual program implementation costs.
4. Provisions Implementing the Requirements of Other Titles of the Act
    a. Section 112--Antelope Valley has demonstrated in its title V 
program submittal adequate legal authority to implement and enforce all 
section 112 requirements through the title V permit. This legal 
authority is contained in the State of California enabling legislation 
and in regulatory provisions defining ``applicable requirements'' and 
``federally enforceable'' and mandating that all federal air quality 
requirements must be incorporated into permits. EPA has determined that 
this legal authority is sufficient to allow Antelope Valley to issue 
permits that assure compliance with all section 112 requirements. For 
further discussion, please refer to the Technical Support Document 
accompanying this action and the April 13, 1993 guidance memorandum 
entitled, ``Title V Program Approval Criteria for Section 112 
Activities,'' signed by John Seitz.
    b. Title IV--Antelope Valley Governing Board adopted Rule 3010 
(Acid Rain Provision of Federal Operating Permits) on March 17, 1998, 
which incorporates the pertinent provisions of part 72, either by 
reference or in specific language in the rule. EPA interprets 
``pertinent provisions'' to include all provisions necessary for the 
permitting of affected sources.

B. Proposal for and Implications of Interim Approval

1. Title V Operating Permits Program
    a. Proposed Interim Approval--The EPA is proposing to grant interim 
approval to the operating permits program submitted by CARB on behalf 
of Antelope Valley on January 26, 1999. Following interim approval, 
Antelope Valley must make the following changes to receive full 
approval:
    (1) Section 70.7(f)(1)(i) provides that no reopening of the permit 
is required if the effective date of a new, applicable requirement is 
later than the permit expiration date, unless the original permit or 
any of its terms and conditions has been extended per Sec. 70.4(b)(10). 
Section 70.4(b)(10) provides that the original permit shall remain in 
effect until the renewal permit has been issued or denied, if a timely 
and complete application is submitted for a permit renewal.
    Antelope Valley's Rule 3006(A)(1)(a)(i) states that no reopening is 
required if an additional requirement's effective date is later than 
the permit's expiration date, unless the permit or any of its terms has 
been extended per Rule 3002(E)(2)(b). However, Rule 3002(E)(2)(b) only 
provides that all terms and conditions in the original permit shall 
remain in effect, until a permit renewal has been issued, denied, or 
the original permit has been terminated for cause. This provision did 
not address the important Sec. 70.4(b)(10) requirement that the 
original permit can only remain in effect, if a timely and complete 
application is submitted for a permit renewal. Still, a broader 
examination of Rule 3002(E)(2) reveals that the timely application 
requirement is covered in 3002(E)(2)(a). Therefore, in order to ensure 
complete compliance with Sec. 70.4(b)(10) requirements, Antelope Valley 
must revise Rule 3006(A)(1)(a)(i) to state that no reopening is 
required if an additional requirement's effective date is later than 
the permit's expiration date, unless the permit or any of its terms has 
been extended per Rule 3002(E)(2). (Antelope Valley indicated that this 
was an oversight and will be corrected at the earliest opportunity to 
revise Rule 3002.)
    (2) Revise Antelope Valley's Rule 219 to lower the insignificant 
activity emission cutoff for a regulated pollutant that is not a HAPs 
to 2 tons/year, as recommended by EPA and the CAPCOA/EPA Workgroup on 
Insignificant Activities.
    b. Legislative Source Category--Limited Interim Approval Issue--In 
addition to the District-specific issues arising from Antelope Valley's 
program submittal and locally adopted regulations, California State law 
currently exempts agricultural production sources from permit 
requirements. Because of this exemption, California programs are only 
eligible for source category-limited interim approval. In order for 
this program to receive full approval (and avoid a disapproval upon the 
expiration of this interim approval), the California Legislature must 
revise the Health and Safety Code to eliminate the exemption of 
agricultural production sources from the requirement to obtain a 
permit.
    c. Implications of Interim Approval--The above described program 
and legislative deficiencies must be corrected before Antelope Valley 
can receive full program approval. For additional information, please 
refer to the Technical Support Document, which contains a detailed 
analysis of Antelope Valley's operating permits program, and 
California's enabling legislation.
    Interim approval, which may not be renewed, would extend for a 
period of 2 years. During the interim approval period, the District 
would be protected from sanctions, and EPA would not be obligated to 
promulgate a federal permits program in Antelope Valley. Permits issued 
under a program with interim approval would have full standing with 
respect to part 70, and the 1-year time period for submittal of permit 
applications by subject sources would begin upon EPA's final rulemaking 
granting interim approval, as would the 3-year time period for 
processing initial permit applications.
    Following final interim approval, if Antelope Valley should fail to 
submit a complete corrective program for full approval by the date 6 
months before expiration of the interim approval, EPA would start an 
18-month clock for mandatory sanctions. Then, if Antelope Valley should 
fail to submit a corrective program that EPA found complete before the 
expiration of that 18-month period, EPA would be required to apply one 
of the sanctions in section 179(b) of the Act, which would remain in 
effect until EPA determined that the District has corrected the 
deficiency by submitting a complete corrective program. If, six months 
after application of the first sanction, the Antelope Valley still had 
not submitted a corrective program that EPA found complete, a second 
sanction would be required.
    If, following final interim approval, EPA were to disapprove 
Antelope Valley's complete corrective program, EPA would be required to 
apply one of the section 179(b) sanctions on the date 18 months after 
the effective date of the disapproval unless prior to that date the 
District submitted a revised program and EPA determined that it 
corrected the deficiencies that prompted the disapproval. Again, if, 
six months after EPA applied the first sanction, Antelope

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Valley had not submitted a revised program that EPA determined 
corrected the deficiencies, a second sanction would be required. In 
addition, discretionary sanctions may be applied where warranted any 
time after the end of an interim approval period if a state or district 
has not submitted a timely and complete corrective program or EPA has 
disapproved a submitted corrective program. Moreover, if EPA has not 
granted full approval to a state or district program by the expiration 
of an interim approval, EPA must promulgate, administer and enforce a 
federal permits program for that state or district upon interim 
approval expiration.
2. Section 112(g) Implementation
    EPA has decided that it is not reasonable to expect the states and 
districts to implement section 112(g) before a rule is issued. EPA 
therefore published an interpretive document in the Federal Register 
regarding section 112(g) of the Act: 60 FR 8333 (February 14, 1995). 
This document outlines EPA's revised interpretation of 112(g) 
applicability prior to EPA's issuing the final 112(g) rule. The 
document states that major source modifications, constructions, and 
reconstructions will not be subject to 112(g) requirements until the 
final rule is promulgated.
    The document further explains that EPA is considering whether the 
effective date of section 112(g) should be delayed beyond the date of 
promulgation of the Federal rule so as to allow States and Districts 
time to adopt rules implementing the Federal rule, and that EPA will 
provide for any such additional delay in the final section 112(g) 
rulemaking. Unless and until EPA provides for such an additional 
postponement of section 112(g), Antelope Valley must be able to 
implement section 112(g) during the period between promulgation of the 
Federal section 112(g) rule and adoption of implementing District 
regulations. For this reason, EPA is proposing to approve the use of 
Antelope Valley's preconstruction review programs as a mechanism to 
implement section 112(g) during the transition period between 
promulgation of the section 112(g) rule and adoption by the nineteen 
districts of rules specifically designed to implement section 112(g). 
However, since approval is intended solely to confirm that Antelope 
Valley has a mechanism to implement section 112(g) during the 
transition period, the approval itself will be without effect if EPA 
decides in the final section 112(g) rule that there will be no 
transition period. The EPA is limiting the duration of its approval of 
the use of preconstruction programs to implement 112(g) to 12 months 
following promulgation by EPA of the section 112(g) rule.
3. Program for Delegation of Section 112 Standards as Promulgated
    Requirements for part 70 program approval, specified in 40 CFR 
70.4(b), encompass section 112(l)(5) requirements for approval of a 
program for delegation of section 112 standards as promulgated by EPA 
as they apply to part 70 sources. Section 112(l)(5) requires that the 
District's program contain adequate authorities, adequate resources for 
implementation, and an expeditious compliance schedule, which are also 
requirements under part 70. Therefore, the EPA is also proposing to 
grant approval under section 112(l)(5) and 40 CFR 63.91 of Antelope 
Valley's program for receiving delegation of section 112 standards that 
are unchanged from the federal standards as promulgated. California 
Health and Safety Code section 39658 provides for automatic adoption by 
CARB of section 112 standards upon promulgation by EPA. Section 39666 
of the Health and Safety Code requires that districts then implement 
and enforce these standards. Thus, when section 112 standards are 
automatically adopted pursuant to section 39658, Antelope Valley will 
have the authority necessary to accept delegation of these standards 
without further regulatory action by the District.
4. State Operating Permit Program for Synthetic Minors
    On March 31, 1995, CARB submitted for approval into the Antelope 
Valley's portion of the California State Implementation Plan (SIP) a 
local operating permit program designed to create federally enforceable 
limits on a source's potential to emit. This District program is 
referred to as a synthetic minor operating permit program, and it 
consists of regulations that will be integrated with the District's 
existing, non-federally enforceable, operating permit program. Such 
programs are also referred to as federally enforceable state operating 
permit (FESOP) programs. This synthetic minor or FESOP mechanism will 
allow sources to reduce their potential to emit to below the title V 
applicability thresholds and avoid being subject to title V.
    Antelope Valley's synthetic minor regulations were adopted on March 
17, 1998 and codified in Rule 225 (Federal Operating Permit 
Requirement). EPA found the initial SIP submittal administratively 
complete by default.
    The five criteria for approving a state operating permit program 
into a SIP were set forth in the June 28, 1989 Federal Register notice 
(54 FR 27282): (1) The program must be submitted to and approved by 
EPA; (2) the program must impose a legal obligation on the operating 
permit holders to comply with the terms and conditions of the permit, 
and permits that do not conform with the June 28, 1989 criteria shall 
be deemed not federally enforceable; (3) the program must contain terms 
and conditions that are at least as stringent as any requirements 
contained in the SIP or enforceable under the SIP or any other section 
112 or other Clean Air Act standard or requirement; (4) permits issued 
under the program must contain conditions that are permanent, 
quantifiable, and enforceable as a practical matter; and (5) permits 
issued under the program must be subject to public participation.
    Permits issued under an approved program are federally enforceable 
and may be used to limit the potential to emit of sources of criteria 
pollutants. Antelope Valley's synthetic minor provisions of Rule 225 
meet the June 28, 1989 criteria by ensuring that the limits will be 
permanent, quantifiable, and practically enforceable and by providing 
adequate notice and comment to EPA and the public. Therefore, EPA is 
proposing to approve, pursuant to part 52 and the approval criteria 
specified in the June 28, 1989 Federal Register notice, Rule 225 
(Federal Operating Permit Requirement), which was submitted to create 
the synthetic minor operating permit program. Please refer to the 
Technical Support Document for a thorough analysis of the June 28, 1989 
criteria as applied to the Antelope Valley's syntheticminor program.
    On November 10, 1999, Antelope Valley requested approval of its 
synthetic minor program, consisting of the rule specified above, under 
section 112(l) of the Act for the purpose of creating federally 
enforceable limitations on the potential to emit of hazardous air 
pollutants (HAPs). The separate request for approval under section 
112(l) is necessary because the proposed SIP approval discussed above 
only provides a mechanism for controlling criteria pollutants. While 
federally enforceable limits on criteria pollutants (i.e., VOCs or PM-
10) may have the incidental effect of limiting certain HAPs listed 
pursuant to section 112(b),\1\ section 112 of the Act provides the 
underlying authority for controlling HAPs emissions that are not 
criteria pollutants. As a legal matter, no

[[Page 17235]]

additional program approval by EPA is required in order for these 
criteria pollutant limits to be recognized as federally enforceable. 
EPA has determined that the five approval criteria for approving FESOP 
programs into the SIP, as specified in the June 28, 1989 Federal 
Register notice, are also appropriate for evaluating and approving the 
programs under section 112(l). The June 28, 1989 notice does not 
address HAPs because it was written prior to the 1990 amendments to 
section 112 (which injected the concept of major HAPs sources versus 
non-major or area HAPs sources into the permit) and not because it 
establishes requirements unique to criteria pollutants. Hence, the five 
criteria outlined above are applicable to FESOP approvals under section 
112(l).
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    \1\ The EPA intends to issue guidance addressing the technical 
aspects of how these criteria pollutant limits may be recognized for 
purposes of limiting a source's potential to emit of HAPs to below 
section 112 major source levels.
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    In addition to meeting the criteria in the June 28, 1989 notice, a 
FESOP program that will control HAPs emissions must meet the statutory 
criteria for approval under section 112(l)(5). Section 112(l)(5) allows 
EPA to approve a program only if it: (l) contains adequate authority to 
assure compliance with any section 112 standard or requirement; (2) 
provides for adequate resources; (3) provides for an expeditious 
schedule for assuring compliance with section 112 requirements; and (4) 
is otherwise likely to satisfy the objectives of the Act.
    The EPA plans to codify the approval criteria for programs limiting 
potential to emit of HAPs in subpart E of part 63 (subpart E), the 
regulations promulgated to implement section 112(l) of the Act. The EPA 
currently anticipates that these criteria, as they apply to FESOP 
programs controlling HAPs, will mirror those set forth in the June 28, 
1989 document, with the addition that the state's authority must extend 
to all HAPs, instead of, or in addition to, VOCs and PM-10. The EPA 
currently anticipates that FESOP programs that are approved pursuant to 
section 112(l) prior to the subpart E revisions will have had to meet 
these criteria, and hence, will not be subject to any further approval 
action.
    The EPA believes it has authority under section 112(l) to approve 
programs to limit potential to emit of HAPs directly under section 
112(l) prior to this revision to subpart E. Section 112(l)(5) requires 
EPA to disapprove programs that are inconsistent with guidance required 
to be issued under section 112(l)(2). This might be read to suggest 
that the ``guidance'' referred to in section 112(l)(2) was intended to 
be a binding rule. Even under this interpretation, the EPA does not 
believe that section 112(l) requires this rulemaking to be 
comprehensive. That is, it need not address all instances of approval 
under section 112(l). Given the severe timing problems posed by 
impending deadlines set forth in MACT standards and for submittal of 
title V applications, EPA believes it is reasonable to read section 
112(l) to allow for approval of programs to limit potential to emit 
prior to issuance of a rule specifically addressing this issue.
    EPA proposes approval of Antelope Valley's synthetic minor program 
pursuant to section 112(l) because the program meets all of the 
approval criteria specified in the June 28, 1989 Federal Register 
notice and in section 112(l)(5) of the Act. Please refer to the 
Technical Support Document for a complete discussion of how the June 
28, 1989 criteria are met by Antelope Valley. Regarding the statutory 
criteria of section 112(l)(5) referred to above, the EPA believes 
Antelope Valley's synthetic minor program contains adequate authority 
to assure compliance with section 112 requirements since the third 
criterion of the June 28, 1989 notice is met: The program does not 
provide for waiving any section 112 requirement. Sources would still be 
required to meet section 112 requirements applicable to non-major 
sources. Furthermore, EPA believes that Antelope Valley's synthetic 
minor program provides for an expeditious schedule for assuring 
compliance because it allows a source to establish a voluntary limit on 
potential to emit and avoid being subject to a federal Clean Air Act 
requirement applicable on a particular date. Nothing in Antelope 
Valley's program would allow a source to avoid or delay compliance with 
a federal requirement if it fails to obtain the appropriate federally 
enforceable limit by the relevant deadline. Finally, Antelope Valley's 
synthetic minor program is consistent with the objectives of the 
section 112 program because its purpose is to enable sources to obtain 
federally enforceable limits on potential to emit to avoid major source 
classification under section 112. The EPA believes this purpose is 
consistent with the overall intent of section 112, which is to decrease 
the amount of HAPs being emitted; by committing to stay below a certain 
emission level for HAPs, a source with a synthetic minor permit is 
achieving this goal.

III. Administrative Requirements

A. Request for Public Comments

    The EPA is requesting comments on all aspects of this proposed 
interim approval. Copies of Antelope Valley's submittal and other 
information relied upon for the proposed interim approval are contained 
in a docket maintained at the EPA Regional Office. The docket is an 
organized and complete file of all the information submitted to, or 
otherwise considered by, EPA in the development of this proposed 
interim approval. The principal purposes of the docket are:
    (1) To allow interested parties a means to identify and locate 
documents so that they can effectively participate in the approval 
process, and
    (2) To serve as the record in case of judicial review. The EPA will 
consider any comments received by May 1, 2000.

B. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, Regulatory Planning and 
Review.

C. Executive Order 13132

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999), revokes and replaces Executive Orders 12612, Federalism, and 
12875, Enhancing the Intergovernmental Partnership. Executive Order 
13132 requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255,

[[Page 17236]]

August 10, 1999), because it merely approves a state rule implementing 
a federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act. Thus, the requirements of section 6 of the Executive Order do not 
apply to this rule.

D. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency. This rule is not subject to 
Executive Order 13045 because it is does not involve decisions intended 
to mitigate environmental health or safety risks.

E. Executive Order 13084

    Under Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.'' Today's rule 
does not significantly or uniquely affect the communities of Indian 
tribal governments. Accordingly, the requirements of section 3(b) of 
Executive Order 13084 do not apply to this rule.

F. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This final rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve requirements that the State is 
already imposing. Therefore, because the Federal SIP approval does not 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

G. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen dioxide, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur oxides, Volatile organic compounds.

40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances, Intergovernmental 
relations, Operating permits, Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: March 17, 2000.
Laura Yoshii,
Acting Regional Administrator, Acting Region IX.
[FR Doc. 00-7999 Filed 3-30-00; 8:45 am]
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